FIXING THE MEDICAL MARIJUANA MESS

Alex Rosemblat Cavalier Daily Columnist While the debate over the validity
and legality of marijuana for medical purposes rages on in governing bodies
across the United States, an arguably innocent citizen has been caught in
the crossfire. On Jan. 31, Ed Rosenthal, who had been deputized by the City
of Oakland, California, to grow marijuana for critically ill patients, was
found guilty in a federal court of growing marijuana. He faces up to 85
years in prison as his maximum sentence, which will be decided on June 4.
Oakland declared medical marijuana legal under municipal law in 1996 by a 78
percent majority in the Proposal 215 referendum vote. However, the federal
judge presiding over this case, Charles Breyer, refused to admit these
materials into his courtroom during the trial. A new trial for Rosenthal
must include the evidence that he was growing the marijuana for the City of
Oakland. If it is legally impossible to include such materials in a federal
courtroom, the law for which Rosenthal is being prosecuted, the federal
Controlled Substances Act, must be reworked by Congress to allow such
evidence in a federal trial.

After the two-week trial in which Rosenthal was found guilty, the jurors
learned of his motives for growing the marijuana. Six jurors have issued
apologies to Rosenthal for their decisions and admitted that they would have
voted differently had they known the full story. As one juror, Marnie Craig
described it, "It's the most horrible mistake I've ever made in my entire
life" ("Jurors Tell Ed Rosenthal They're Sorry," OaklandTribune.com, Feb. 5,
2003). Rosenthal plans to appeal this case, and the jurors themselves are
requesting another trial.

Rosenthal was not a drug dealer. The plants he was growing were not going to
be distributed illegally on the streets of California cities, but rather
were going to patients that require marijuana to alleviate their symptoms or
perhaps cure them. Unfortunately, Judge Beyer's decision to refuse Rosenthal
the right to clear up why and for who he had been growing marijuana was
legal. The Controlled Substances Act prosecutes offenders regardless of
their intent.

The City of Oakland had attempted to provide Rosenthal immunity against
prosecution by deputizing him and claiming that he was innocent under
provision 885(d), which protects law enforcement officials who hold, buy or
sell drugs as part of their job. Judge Breyer ruled that Rosenthal was not
covered by this provision.

Because federal law supercedes state or municipal law, legal medical
marijuana is impossible since federal law does not permit it. By that
reasoning, Rosenthal is clearly guilty. However, in this case, he was not
growing marijuana plants with criminal intent. Many of the jurors who
convicted him claimed that they were misled by the withholding of that fact,
and would have voted differently had they been aware of it. This case
indicates that the Controlled Substances Act is flawed and outdated.

If Rosenthal is granted an appeal case, he and the City of Oakland must be
allowed to testify that he was growing marijuana on the city's behalf. If
there is enough evidence that Mr. Rosenthal should be convicted under the
Controlled Substances Act, the prosecution and judge should have no reason
to question the introduction of the information that was withheld in the
first trial.

If, however, this evidence is never allowed in a federal court, the
Controlled Substances Act must be revised to make it available. The law must
make it possible for the intent of substance production to be admissible as
evidence in a federal court of law. This particular law was written before
any cities voted to legalize marijuana for medical purposes, and thus is
outdated. Although a municipality cannot just change a law it doesn't agree
with, federal law must reflect the needs of the citizens to which it is
applied. Laws are subject to change, and as municipalities across the nation
discuss making marijuana legal for medical use, it is clear that times are
indeed changing. The laws must adjust to meet this change and protect as
well as prosecute citizens under the new paradigms of law and current
affairs.

Rosenthal is innocent under his city law, but guilty under federal law. This
is an issue that must be resolved as quickly as possible. Because if even
one citizen is being treated unjustly by any law, that is one citizen too
many.